Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney
Open Records Decision
The question presented in this open records appeal is whether the Cabinet for Health Services - Division of Licensing and Regulation properly relied on KRS 61.878(1)(a) in denying Wm. Dennis Sims access to the identity of the person whose allegations prompted the Cabinet's investigation of Little Treasures Child Care. Mr. Sims is an attorney who represents the owners of Little Treasures Child Care, Debbie W. and Gregory L. Nelson.
Upon receipt of this office's notification of open records appeal, Rebecca Cecil, Director of the Division of Licensing and Regulation, elaborated on the Division's position. In a letter to this office dated October 24, 1997, she explained:
The Division of Licensing and Regulation investigates allegations of regulatory violations in health facilities and health services and in child care facilities pursuant to contract with the Cabinet for Families and Children. Typically, the investigations are initiated following complaints by concerned citizens about conditions or treatment of clients of facilities and services. It is essential to the investigation process that those filing complaints with the agency have assurance that certain information they provide, including their own identity, is maintained as confidential by the agency. Any other treatment of the identity of informants in these cases would have a chilling effect upon a primary source of information regarding alleged regulatory violations for the agency and could compromise its ability to monitor compliance with federal and state law.
In subsequent conversations, representatives of the Cabinet furnished this office with additional information relative to the identity of the person whose allegations prompted the investigation. That information is clearly indicative of a need for confidentiality. We therefore affirm the Cabinet's denial of Mr. Sims's request for the identity of the person.
This office and the courts have consistently recognized that written complaints which spawn an investigation may not be excluded from public inspection after final action is taken because the public has a right to know what complaints have been made and how they were resolved. City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky.App., 663 S.W.2d 953 (1984); OAG 83-332; OAG 86-46; OAG 87-32. The Attorney General has just as consistently recognized, however, that a complainant's identity may be excluded from inspection pursuant to KRS 61.878(1)(a). OAG 84-315; OAG 85-136; OAG 89-52; OAG 90-12.
It is instructive to quote from an early opinion in which this question was raised:
Although in City of Louisville and Kentucky State Board of Medical Licensure, supra, the Court of Appeals stated that complaints spawning an investigation are open once final action is taken, neither opinion discussed the release of the complainant's name. This question apparently was not considered by the Court.
The standard applied to the KRS 61.878(1)(a)privacy exemption is a balancing of interests. Specifically, the balance is between the protection of an individual's private affairs from unnecessary public scrutiny against the preservation of the public's right to governmental information. In this case, the nature of the withheld information (the complainant's name) obviously identifies the complainant and disclosure could possibly harm the complainant through harassment. Additionally, the complainant's identity is protected by the Department's policy of keeping complainants' names confidential. This policy is illustrative of the chilling effect which could occur if this information was open to public inspection.
It is therefore our opinion that disclosure of the complainant's name would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to governmental information. Release of the complainant's name would effectively chill any reporting of violations to the Department of Housing. Release of the complaint with the complainant's name deleted would effectively protect the complainant while allowing the party against whom the complaint is made access to information concerning the alleged violation which resulted in agency action.
OAG 84-315, p. 4, 5.
In a later decision, we elaborated on this view:
To compel disclosure of the complainant's name . . . would establish a dangerous precedent, the likely result of which would be a decrease in the reporting of violations . . . There are occasions when a complainant has a reduced expectation of privacy, as, for example, where the individual has testified in an open hearing. These individuals do not have a cognizable personal privacy interest in keeping their identities confidential. OAG 91-94. However, as a general rule, we believe that the regulatory process would be seriously impaired if we established a blanket rule requiring the release of the identities of complainants. . . .
93-ORD-108, p. 4.
From the exclusions codified at KRS 61.878(1)(a) through (l):
We must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality. A cursory examination of KRS 61.878 reveals an extensive list of matters excluded from public access, and this also suggests an absence of legislative intent to create unrestricted access to records.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). An individual who alerts a regulatory agency to possible statutory or regulatory violations within a licensed facility under circumstances which may render the individual vulnerable to retaliation does so with some expectation of privacy. Indeed, we can think of few other instances in which the privacy interest is so strongly substantiated. Conversely, the public's interest in ascertaining whether the Cabinet is thoroughly and responsibly investigating allegations of statutory or regulatory violations within a licensed facility is not generally served by disclosure of the identity of the complainant. As the Kentucky Court of Appeals recently observed:
At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825, 829 (1994). Because disclosure of the complainant's identity would not subject the Cabinet's action to public scrutiny in any meaningful way, "the relevant public interest supporting disclosure in this instance is nominal at best." Id. We therefore conclude that the complainant's privacy interest is superior to the public interest in disclosure, and affirm the Cabinet's denial of Mr. Sims's request.
In closing, we note that the Court of Appeals recently articulated a rigorous standard by which to judge the adequacy of an agency's response to an open records request. In Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996), the court held:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act--much less amount [] to substantial compliance.
Although the Cabinet did not provide "particular and detailed information" in response to Mr. Sims's request by indicating what particular privacy interest was implicated by disclosure (for example, an employee's fear of retaliatory firing, a parent's fear of retribution directed at his or her child, etc.), we believe that the Court of Appeals' admonition must be tempered by the particular facts giving rise to the appeal. Simply stated, we do not believe that the agency is obligated to provide such particular and detailed information that it defeats the purpose for which the privacy exception was enacted. The Cabinet's response was, in our view, sufficient and proper under the law.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.